This is in the nature of an action of covenant broken. The agreement declared upon is somewhat complicated and peculiar. We were apprehensive that we did not rightly understand the agreement, or that the parties acted under some great mistake of its terms, the result of which is. that the party owning four fifths of the estate should give the other party, for his one fifth, more than the appraised value of the whole, in pursuance of an agreement between tenants in common, apparently intended as a substitute for a partition. It may be so, and the party may be bound; but if so, it must be by force of strict law, and cannot be aided by equitable considerations. The question raised by the demurrer is, whether the declaration sets forth a good cause of action, as against this defendant.
*599The agreement exactly defines the parties who are to bid against each other, Pierce and wife, the plaintiffs, on the one side, and the defendant and five others on the other. The declaration does not aver that the parties bid, but that the defendant bid. This is not conformable to the contract; he had no authority to act individually, and did not bind himself personally ; and it is by force of his contract, if at all, that he can be held. But if it be said that one only could bid, and that the defendant bid for his party; then the whole were purchasers, and all bound by the bid, and by their contract, and the suit should have been against them all. But the averment is, not only that the defendant made the bid, but that he became bound, and the plaintiffs executed and tendered a deed to him, and that he declined to receive the deed and pay the money. For-this reason, we think the declaration sets forth no cause of action.
There are other considerations, perhaps less important, but yet of some weight, and one of substance, not of form only. The thing to be bid for and conveyed was the interest of Pierce and wife in the real estate; whereas the deed executed and tendered as a performance on the part of the plaintiffs was of the interest of the female plaintiff. The difference is material, inasmuch as there must have been an interest in the estate vested in husband and wife jointly, in her right, at least for their joint lives, and perhaps an inchoate tenancy by the curtesy. There may be other objections to this declaration, but these are decisive
Demurrer sustained.
Thomas, J. did not sit in this case.